Defense Motion for Judgment of Acquittal
98 linesJUDGE WHEELER: All right. Good morning, everyone. We're here this morning in the State of Florida versus Katherine Magbanua. 2016-CF-3036. 2018-CF-497. Ms. Magbanua is present along with her counsel and also counsel for the state.
JUDGE WHEELER: Okay. The first thing that we need to address is any motions that the defense would like to present. And so, Ms. Kawass.
MS. KAWASS: Yes, Your Honor.
JUDGE WHEELER: Would you like to proceed?
MS. KAWASS: Thank you, Your Honor.
JUDGE WHEELER: And for the record, the state has rested.
MS. KAWASS: So, Your Honor, at this time, the defense would like to renew all previous motions and objections and make our first motion for judgment of acquittal as it relates to the charges against Ms. Magbanua.
MS. KAWASS: I'll start first with the principal to first-degree murder.
MS. KAWASS: To sustain a conviction as a principal for a crime committed by another, the state must prove that the defendant intended that the crime be committed and did some act or some word that would cause or assist the other person in actually committing the crime. In this case, Judge, it's very clear — even through the state's lead detective — the only direct evidence in this case against Ms. Magbanua's involvement comes from the words of Luis Rivera. Everything else is circumstantial as it relates to Ms. Magbanua's involvement in this case. The only thing he was able to testify to as to Ms. Magbanua's involvement was that Garcia said that she is the mastermind behind all of this. There were no details as to who did the hiring, how the money was transferred. Rivera just said everything came through Garcia and he was hired by Garcia, who was paid afterwards by Katie. So in this case, Judge, we don't have any evidence that Ms. Magbanua intended that this crime be committed or did anything to assist. I'm going to point the court to the case of Williams versus State, which is a Florida First DCA case from 2021.
MS. KAWASS: 314 Southern Third 775. The state failed to produce — and this is a murder-for-hire case, Judge — the state failed to produce evidence to make out a prima facie case that Ms. Williams was a principal to murder. In this case, they found that the only culpable conduct — Ms. Williams was a defendant in the case — was that she helped develop an alibi, she included considerations of ways to kill the victim in the case, and she was agreeing to encourage the person to go out so that he could end up being killed by who was her, I guess, lover at the time, who ended up being a witness that testified against her. And the court actually overturned her jury conviction for principal for first-degree murder. That case actually delineates very well, you know, solicit, accessory after the fact, accessory before, and the principal case as it relates to first-degree murder. And I feel that that case is controlling here. They had more evidence in that case as it relates to principal for first-degree murder, so I would say that in this case we have even less, because the only evidence as it relates to what Ms. Magbanua allegedly did to assist in this came from the words of Luis Rivera, which all he was able to say was that she was a mastermind. I'm also going to rely on Rocker v. State, 122 Southern 3rd 898, as the language in there as it relates to circumstantial evidence. I won't go all over all of that, Judge. I'm just going to rely on that of what circumstantial evidence can be to establish principal.
MS. KAWASS: I'm gonna now move on to Count Two, conspiracy to commit murder. A conspiracy exists where there is an express or implied agreement between two or more persons to commit a criminal offense and an intention to commit the offense, which in this case is murder. We have zero evidence before this court of an agreement between Ms. Magbanua and any member of the Adelson family. In fact, the state's own witness, Ms. Adelson, said that her family had nothing to do with this. The court is very well aware that the state can't rely on impeachment evidence to substantiate the charges and the elements of the charges, because impeachment evidence isn't substantive evidence. So the court has to look at all the evidence that was not impeachment. All we have left here is Luis Rivera saying Garcia says she's the mastermind or the go-between. There's nothing in there that says who she conspired with, what the agreement was. He explicitly said he had no information as it relates to that because he doesn't know those people, and that all the information came to him from Garcia. And in this case, in this courtroom, the only thing he was able to say as it relates to Ms. Magbanua — anything occurring before the murder — was, "He told me that, you know, she is in the middle."
MS. KAWASS: Count Three, solicitation to commit murder. The elements are that the state has to prove that the defendant commanded, hired, requested, and encouraged another person to commit a crime, and that the intent that the other person commits the crime. In this case, I'm relying on the same argument, Judge, because only direct evidence comes from Luis Rivera's mouth. There's nothing else to substantiate who it was that solicited Sigfredo Garcia. He didn't explicitly say that Sigfredo told him that Katie was the one that came to him to get him to do the murder. He just said Garcia showed up at his residence — or actually, he found out, whichever one it is, that he found out on the way up on the first trip what it was — and then he then testifies that he hears Garcia talking on the phone and believes that it to be Ms. Magbanua, but there is no direct evidence that Ms. Magbanua solicited either one of them to do this crime. So, Your Honor, I know you've been paying close attention to all the evidence in this case. I'll rely on the court's recollection of how the evidence presented itself, but that's our argument as it relates to first JOA — that the state has failed to establish those elements as being a prima facie case of any of the three charges that I just went over.
JUDGE WHEELER: All right. Thank you, Ms. Kawass.
MS. KAWASS: Thank you, Judge.
JUDGE WHEELER: Ms. Cappleman.
MS. CAPPLEMAN: Facts taken in the light most favorable to the case, including the testimony of Luis Rivera as well as Jessica Rodriguez as direct evidence, coupled with all the circumstantial evidence in the case in the light most favorable to the state, is sufficient to go to the jury in this case. The distinction between our case and the Williams case that the defense cited is twofold. One, in that case the court found there was insufficient evidence to show that the defendant planned anything or stage-managed the murder. In this case, as the defense mentioned, Rivera describes her as the mastermind and does offer details. She's the one that hired, she's the one that paid, she's the one that told them to take stuff off Instagram, she told them when to kill, who to kill, and where to go to do it. She's the one that provided all the direction or stage-managing in this case, different from what we had in the Williams case. In addition, a very important distinction is that this defendant was paid and paid others to do the murder, which is distinguishing from the Williams case. So I would ask that you deny the motion and let the case go to the jury.
JUDGE WHEELER: All right. Thank you.
JUDGE WHEELER: Okay, the court will find that there is sufficient evidence in the light most favorable to the state for all three charges to go to the jury. In regards to the first-degree murder, there was sufficient evidence proven by the state that the victim is dead, that the death was caused by the defendant, and that it was also premeditated, that she acted as a principal, had the conscious act.
JUDGE WHEELER: To perform the criminal act and also did some act to assist in the murder. That evidence consists of Rivera's testimony, which is direct evidence that implicated the defendant, from which the jury could find that this murder was committed by the defendant. That's also supported by both direct and circumstantial evidence, which would include the bank records, the employment records, the content of the intercepted phone calls, along with the timing of the intercepted phone calls, the substance of the meeting at the Dolce Vita restaurant, and then also other independent witness testimony, particularly testimony in regards to the money payment that went to Rivera and how that was done. There is also sufficient evidence to prove both the conspiracy and the solicitation.
JUDGE WHEELER: There was evidence of the intent to commit the murder and also that she conspired with other people, namely Charlie Adelson, Mr. Garcia, and Mr. Rivera, with the intent to commit this murder, and also the solicitation. She solicited a person, namely Mr. Garcia, and there is evidence of that, and that she commanded or hired that person or people, both Garcia and Rivera, in order to commit this crime.
JUDGE WHEELER: So therefore, in the light most favorable to the state, there is sufficient evidence for this to go to the jury, and the motion for judgment of acquittal is denied.
JUDGE WHEELER: All right, so we are moving at this point to the defense case. And who would like to speak on behalf of the defense case this morning? I'm just going to ask about witnesses and that type of thing. Mr. DeCoste?
MR. DECOSTE: Oh, for a second there it cut off. Gosh, I'm like — can only one of us do the witnesses? Um, I'll speak on it, Your Honor.
JUDGE WHEELER: All right. So I received a list, I appreciate that. And so I see that you have a list of six witnesses. Is that correct?
MR. DECOSTE: Correct, Your Honor.
JUDGE WHEELER: Okay, and this does not include, at this point — it does not include Ms. Magbanua — but is that a decision that you want to make after these witnesses, or are you prepared to make that decision at this point, or is your client prepared to make that decision at this point?
MR. DECOSTE: Yeah, we would prefer to do it after, Your Honor.
JUDGE WHEELER: Okay, all right. What do you anticipate time-wise in regards to these witnesses?
MR. DECOSTE: Are you sure you don't want to ask Ms. Kawass that?
JUDGE WHEELER: Well, no, I'd rather ask you, but then I'll add a couple hours to that.
MR. DECOSTE: All right, perfect, perfect.
MR. DECOSTE: So, Your Honor, this may help out as well, too, for the timing. Unfortunately, this system has gone down, and we need the system in some part for each witness.
JUDGE WHEELER: Okay.
MR. DECOSTE: I apologize, I don't know his name. The tech guy came and then he said he's calling facilities management. There's no power going to it, so we're not...
JUDGE WHEELER: All right. I didn't know that. Okay.
MR. DECOSTE: My anticipation — I'll go through the witnesses. Craig Isom, I think the direct examination is going to be about 15-20 minutes.
JUDGE WHEELER: Okay.
MR. DECOSTE: So 40 minutes, and then obviously cross-examination. We do have Trooper Downing, who is here, the FHP trooper — we haven't spoken to him yet, we're going to push him a little bit later in calling the witnesses and have a conversation with him. Ryan Fitzpatrick, we flew him up, he's here, he's gonna be a little bit longer. And Ms. Kawass can tell me how long she thinks that examination's gonna be. Michael Dillmore — he's laying the foundation to enter in some items, sort of like the ZRT report, which is a download of Sigfredo Garcia's phone.
JUDGE WHEELER: All right.
MR. DECOSTE: Jason Newland, who of course is here — I think that his direct examination is gonna be about 45 minutes. His is the longer one.
JUDGE WHEELER: All right.
MR. DECOSTE: And then our first witness of the morning is Sherry Bennett. She's being called to impeach Jessica Rodriguez. It's a matter of playing five minutes of a recorded phone call with Jessica Rodriguez, so 10-15 minutes.
JUDGE WHEELER: Now, what about play — can you play... do you have power to play that recorded phone call from there?
MR. DECOSTE: I do, but I don't think it's going to be loud enough for the jury. On all witnesses, too, there's an aspect of showing something on the Elmo to be able to go over it.
JUDGE WHEELER: Well, do you have all those things on paper or do you have them just in your computer? The things that you are going to show to the witnesses, do you have them on paper also?
MR. DECOSTE: No.
JUDGE WHEELER: Are they going to be admitted in evidence?
MR. DECOSTE: I can go through it.
MR. DECOSTE: For example, the maps that we used — it's best in the electronic form because the printout can't get the... although we have the maps in evidence.
JUDGE WHEELER: Are these demonstrative? I'm just trying to see if we can get it done with some of these, because I don't want to hold things up just because we are dealing with this.
MR. DECOSTE: We're going to try to get it fixed.
JUDGE WHEELER: But if we've got things in paper that we can show to the jury, you know, we've done that at one time or another.
MR. DECOSTE: Correct, and that's the way that we used to do it before all this.
JUDGE WHEELER: Right. The, um, my hope is that we can get an idea of whether it's going to get fixed right now.
MR. DECOSTE: I haven't gone, because I just came in. I got my stuff set up. I haven't gone through it to figure out what I needed for and what I don't. I can look real quick and see.
JUDGE WHEELER: All right. It looks like we're going to find that out right now. So let's see if we can — maybe we're running power from another source.
JUDGE WHEELER: Sure.
MS. CAPPLEMAN: Judge, can I be heard while they're working on that?
MS. CAPPLEMAN: On the defense issue of defense exhibits — throughout the course of this trial, we have really not been privy to what the defense is showing the witnesses. That's been told, explained as: we don't know what we're going to use until the minute we use it. But now this is the defense case. The only exhibit I'm aware of, as we stand here right now, is there's a portion of an interview with Jessica Rodriguez that they intend to publish.
MS. CAPPLEMAN: I'm not aware of anything in that interview that's inconsistent with what Jessica Rodriguez said she was confronted with and denied saying. So at this point, I'm going to object to the admission of that item. I think that's something that needs to be done outside the presence of the jury and ruled on before we get in front of the jurors.
JUDGE WHEELER: All right. So first of all, in regards to exhibits — any exhibits that you have that you anticipate that you're gonna enter into evidence today, the state needs to see them.
MR. DECOSTE: Okay, so, Your Honor, to make clear on this: days ago I went over this with Dugan and went through these items. There's nothing new in here. It's all from their discovery. We've reviewed it. I'm gonna review it with them again so that there's no surprises, so that they can't claim that they haven't seen it. This idea that we have not given them items first — it's incorrect, because it's from their evidence. But yes, as I'm questioning, there's a difference in between exhibits and impeachment items. When I'm questioning Agent Sanford...
JUDGE WHEELER: I understand — I don't need to get into that. If you anticipate that you're gonna use some exhibits today, if you could just show them to the state so that they can take a look at them. Secondly, what is this? There's a recorded statement of Jessica Rodriguez, correct?
MR. DECOSTE: And, Your Honor remembers her testimony. She said that — with respect to not being... Investigator Bennett in the phone call says, "You were aware that I was going to be calling you," and Jessica Rodriguez says yes. So she's being impeached on that topic. She said that — "aware that I was going to be calling you," correct? So Sherry Bennett — Investigator Bennett — in the phone call says, "Ms. Rodriguez, you were aware I was going to be calling you," to which Ms. Rodriguez says yes. In her testimony, she said that she was not aware that — that she was not aware that the phone call was coming in. She also testified that this alleged money drop happened in July of 2014, yet in the phone call she says August/September. She says that Katherine handed the bag, but in the phone call said he had the bag, in reference to Garcia. She said that she pressed Katie to find out what was in the bag and that Katie didn't know what was in the bag. She then stated that it was Garcia that called Rivera.
MR. DECOSTE: Not Katherine Magbanua. And most importantly, Your Honor, she is very clear in saying that — and again, we believe that these are all allegations, so they're not entered for the truth of the matter asserted, but we're still only using it for impeachment — she says that Sigfredo Garcia and Katherine Magbanua left before Luis Rivera got there, which is a complete contradiction to what she said on the stand the other day. That's all we're playing. It's about a five-minute portion. There's other stuff.
JUDGE WHEELER: I'm going to allow it as impeachment testimony. You're getting this in through who, through what witness?
MR. DECOSTE: The investigator Sherry Bennett, who did the recording phone call.
JUDGE WHEELER: All right.
MR. DECOSTE: So I'll lay the foundation with her, play, and that's the extent of her testimony.
JUDGE WHEELER: Okay. You're gonna mark it as an exhibit, correct?
MR. DECOSTE: Yes.
JUDGE WHEELER: Okay. Any progress?
JUDGE WHEELER: Well, okay. We think we've made some progress. I see lights on over there.
MR. DECOSTE: So, Your Honor, I have a recording of the entire phone call, but because I'm using it for impeachment, I think the government would agree that I can't enter it in as substantive evidence.
JUDGE WHEELER: Oh, okay.
MR. DECOSTE: I can mark it for the record though.
JUDGE WHEELER: No, no, no, that was my mistake. You're correct.
JUDGE WHEELER: All right. Do we want to check — counsel, you want to check and make sure that there's power coming to this now and everything is operating as you need? Because it looks like it is.
JUDGE WHEELER: All right. Now, in regards to Trooper Downing — he's here in the courtroom. Are you anticipating that he's going to testify today?
MR. DECOSTE: Given the communication — so he walked in when Your Honor was on the bench, I think, that's when we noticed that he was here. Based on ASA Dugan's email yesterday, we still have to talk to him.
JUDGE WHEELER: All right. Well, we don't want him in the courtroom then, right?
MR. DECOSTE: Correct.
JUDGE WHEELER: Yeah. Okay. All right. So, Trooper Downing, good morning.
JUDGE WHEELER: I'm going to ask, sir, that you please remain outside the courtroom until if and when you testify, and during our break, counsel will talk with you at that time, okay?
JUDGE WHEELER: Thank you for being here.
JUDGE WHEELER: All right. And you're going to be able to talk with him during the first break?
MR. DECOSTE: Yes, Your Honor.
JUDGE WHEELER: Okay. So that we can — if we need to get him done this morning, that would be most efficient so that he can then resume his duties. Okay. Anything else before we bring the jury in from the defense, Mr. DeCoste?
MR. DECOSTE: No, Your Honor. Just, one of us would like to step outside to make sure that our witnesses are here. They weren't before we started.
JUDGE WHEELER: All right. They were ready to start. Ms. Cappleman, anything?
MS. CAPPLEMAN: No, sir. I'm just assuming there are no exhibits being shown to this first witness.
JUDGE WHEELER: Ms Kawass, do you know that?
MS. KAWASS: Well, I think this first witness, we have the audio that's being played. I believe that's the only thing, Judge.
JUDGE WHEELER: And that's the only one. Okay. All right, let's bring in the jury, please. We...
MR. DECOSTE: We have Bennett. I'm just waiting on Dillmore, but we can start.
JUDGE WHEELER: With the jury coming in — the only exhibit for this first witness is the audio, correct?
MR. DECOSTE: Correct.
JUDGE WHEELER: Good to see you.